LEGAL IDEAS FORUM

THE IMMUNITY CLAUSE IN NIGERIAN CONSTITUTION: A NECESSARY EVIL

Section 308 is a blessing in Nigeria’s democracy.
REASON FOR IMMUNITY
In Abacha v FRN (2014) LPELR-22014 (SC) Supreme Court gave the reason for the immunity as follows:
The purpose of the immunity is to allow the incumbent President or Head of State, or  Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment.” (emphasis mine)
The above decision of the Supreme Court is justifiable because the propensity for litigation is very high in Nigeria. With multiple cases in court which one would he choose to attend and which one would he refuse to attend? 
when somebody is in power and you want to prosecute him, he uses state resources to defend himself. And you are rather increasing the costs for the state without achieving conviction. 
WHY EXPUNGING IMMUNITY FROM THE CONSTITUTION IS NOT NECESSARY.
(1) Those enjoying immunity can be investigated even while in office. See  EFCC V Fayose  (2018) LPELR-44131(CA)
(2) they can be sued in official capacity. 
For the avoidance of doubt:
In TRUSTEES OF PLANK SELLERS ASSOCIATION OF OYO STATE v. EXECUTIVE GOVERNOR OSUN STATE & ANOR (2017) LPELR-43239(CA) governor of Osun State collected tax from the plaintiffs each time they passed through Osun state with their goods. Court of Appeal held that the action of the Osun governor was unlawful because no citizen can be subjected to double taxation. 
In DURU v. GOVERNOR OF IMO STATE & ORS (2017) LPELR-43042(CA) the appellant sued the governor for revoking his Certificate of Occupancy 
In INCORPORATED TRUSTEES OF CATHOLIC DIOCESE OF EKITI STATE v. AG EKITI STATE & ANOR (2018) LPELR-43510(CA) the appellants challenged  the propriety of the introduction of the payment of Education Development levy in Ekiti State. The grouse of the Claimant was that payment of the levy by pupils of primary and Junior Secondary Schools in Ekiti State offends Section 2 of the Compulsory Free Universal Basic Education Act, 2004 and Section 19 of Ekiti State Universal Basic Education Board (SUBEB) Law, Section 1(1), 5(1) (2), 9 & 10 Part II Second Schedule of the Constitution of the Federal Republic of Nigeria 1999 as amended among others. The action failed on technical ground because it was wrongly commenced.
(3) immunity does not cover election petition.
In the case of Amaechi v. INEC (2008)5 NWLR (Pt. 1080) p. 227, It was held that election petition can be brought against a sitting governor. Therefore, Amaechi’s petition challenging the incumbent governor’s election succeeded and Amaechi was eventually sworn in as the governor of Rivers State. See also section 285 of the constitution and the case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547
The rationale for suspending the operation of the immunity clause during the hearing of election petition was explained by the late Justice Kayode Eso in Obih Vs. Mbakwe (1984) All NLR 134 at 148 when he said:
With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice.”
Similarly, in Turaki v. Dalhaltu (2003) 38 WRN 54 at 168, the Court of Appeal (per Oguntade JCA (as he then was) held that 
“If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution, which in its tenor provides for a free and fair election.”
(4) Those enjoying immunity can be subpoenaed
In certain situations a person enjoying immunity can be subpoenaed (summoned) to testify or give document or both. He cannot be heard to rely on immunity clause in the constitution. 
In the case of the Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 Fayose challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held: 
“… the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”
(5) Immunity does not cover family members.
During  and after the period of his incumbency. See Abacha V FRN (supra). In this case The appellant was the second son of late General Sani Abacha who was the Head of State and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. While in office between 17th November, 1993 and 8th June, 1998 the appellant’s father was alleged to have withdrawn some money running into billions from the Central Bank of Nigeria and deposited same in the appellant’s foreign account. and one Abubakar Atiku Bagudu into their private foreign accounts in various countries. When he was prosecuted for the recovery of the money, he argued that because of the immunity enjoyed by his Father, Sani Abacha, court has no jurisdiction to try him. The court rejected the argument and held that immunity does not cover family members.
(6) They can be tried after leaving office. Governors do not enjoy immunity forever. By section 308(2), they can be prosecuted after leaving office. See Ameachi v INEC (supra) and the proviso in section 308(1)(b) of the constitution. 
(7) They can be removed from office:
By section 188 of the constitution, a governor can be removed from office by members of the State Houses of Assembly for gross misconduct. 
See NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822(SC), Inakoju V. Adeleke (2007) 4 NWLR (Pt 1025) 423, Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 199, Ladoja V. INEC (2007) 12 NWLR (Pt 1047) 119 and Dapianlong v. Dariye (2007) 8 NWLR (pt 1036) 239
(8) Immunity is limited under international law.
Immunity is not applicable outside the territory of Nigeria as only the President is entitled to sovereign immunity under customary international law. The case of R. (on the application of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin) is relevant in this regard. In September 2005, following investigations by the Proceeds of Corruption Unit of the Metropolitan Police in the United Kingdom and the Economic and Financial Crimes Commission (EFCC), Chief D.S.P Alamieyeseigha was arrested in London, questioned and charged with three counts of money laundering.
A worldwide criminal restraint order was obtained by the Crown Prosecution Service over his assets. He then sought to quash the decision to prosecute him in London on the grounds that, as a result of his position as governor and Chief Executive of the State of Bayelsa, he was entitled to state immunity in criminal proceedings brought in the United Kingdom. The argument was rejected by the trial judge who held that as a governor of state which is a constituent part of Nigeria, the applicant was not entitled to sovereign immunity in respect of criminal proceedings brought in the United Kingdom.
CALLING FOR REMOVAL OF  IMMUNITY FROM THE CONSTITUTIONIS A MISPLACEMENT OF PRIORITY
this is because from the foregoing analysis, immunity is not absolute. The limitations are many. In my view t is time to lay argument about immunity to rest and face more pressing matters affecting our lives in Nigeria. Removing immunity cannot be a panacea to our myriad of problems, rather, removing the immunity will add to the problems on ground because of the multiplicity of suits.
I would have rather called for the extension of immunity to Senate President and Speaker House of Representatives including their deputies.
                          
About the author
O. G. Chukkol is a  Student of Faculty of Law, ABU, Zaria. He is a renowned legal author and commentator and has many publications to his name. 
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